TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 174
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....o 2013-14 as on 31st March, 2014. 1.2 On scrutiny of the claim, it was noticed that the refund application was not filed within the specified period as per conditions no. 3 (ii) (b) of the Notification No. 27/2012-CE (NT). Further, it was also noticed that the claim was not on quarterly basis. Thus, it appeared that the claim is time barred as per the Section 11B of Central Excise Act, 1944 read with Notification No. 27/2012-CE (NT) dated 18th June, 2012. A show cause notice was issued to the appellant for rejection of the claim. The Show Cause Notice was decided vide the Order-in-Original dated 29.09.2015 after considering the defense submissions. 1.3 The Adjudicating Authority rejected the refund claim on the following grounds:- (a) The appellant is not fulfilling the criteria as laid down under Rule 6 (6)(v) of the Cenvat Credit Rules, 2004 as they are not exporting their final goods under bond. Hence, they are not eligible for the Cenvat Credit they have taken. Since, they are not eligible for Cenvat Credit, the request for refund of the same is incorrect. (b) The appellant could claim refund of Cenvat Credit accumulated in a quarter due to export of their finished goods ....
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....No. 67 and 128 of Notification No. 12/2012-CE dated 17th March, 2012 is availed." 1.5 The appellant is not disputing that their final product (finished diamonds) is an exempted product not liable to excise duty or attract NIL rate of duty but it is being claimed that their case falls under the category prescribed under Rule 6(6)(v) of Cenvat Credit Rules which says that "if the excisable goods are removed without payment of duty for export under bond in terms of the provisions of the Central Excise Rules, 2002, the provisions of sub-rules (1), (2), (3) and (4) of rule 6 are not applicable." The appellant's claim is not tenable as their goods are not excisable goods. The category provided under Rules 6(6)(v) are of those goods which have been cleared for export without payment of duty which are otherwise excisable. In other words, in this category, the goods are those goods which are always dutiable whether cleared for home consumption or for exports. However, as an incentive to boost the exports, the government has made provision that the goods can be cleared for export without payment of duty on the strength of bond or letter of undertaking. In that case, if the exporter does not....
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....nce as on 30th June, 2013, the date on which refund application was filed. CENVAT Credit balance was lying in their CENVAT Credit records, which was not utilized by them towards payment of Service Tax / Excise Duty for any output service relating to excisable goods and they were also not in a position to utilize the same in future. Therefore, they had filed refund application under Rule 5 of the CENVAT Credit Rules, 2004. 2.2 The learned counsel for the appellant also argued that, it has been alleged by the department in Order-in-Original that appellant has wrongly availed the CENVAT Credit of the input services used in the manufacturing of exempted goods which were later exported. This point was not raised in the Show Cause Notice issued by the department but it was raised at later stage of adjudication by issuing deficiency memo. Later on, the Order-in-Original was passed which confirmed the demand. The Order-in-Original cannot enhance the scope of Show Cause Notice. 2.3 The learned counsel for the appellant also submitted that the appellant is in the business of export of finished diamonds which are not leviable to excise duty and attract NIL rate of duty. As per Rule 6 (1) of....
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....e not exported from India or not exported within the stipulated period, the bond equivalent of duty amount is necessary to be furnished in order to safe guard the government revenue involved in the goods intended for export. 2.6 The learned counsel for the appellant also cited the decision of Hon'ble High Court of Mumbai in the case of M/s. Repro India Ltd vs. UOI, 2009 reported in (235) ELT 614 (Bom.) in which Bombay High Court has held that CENVAT Credit is available in respect of input / input services used in manufacture of exempted goods if they are exported. Hon'ble High Court observed that Rule 6(6)(v) of CENVAT Credit Rules, 2004 has been consciously and expressly enacted with the specified objective to ensure that duty is not levied even on inputs going to the export products. The expression 'excisable goods' used in place of 'exempted goods' in Rule 6(6) of CENVAT Credit Rules, 2004 is wider to include both dutiable and exempted goods. 2.7 The learned counsel for the appellant also cited Jolly Board Ltd vs. Aurangabad reported in 2015 (321) ELT 502 (Tn.-Mumbai); CCE, Ahmedabad-III vs. Gujarat Ambuja Exports Ltd reported in 2014 (311) ELT 718 (Tn.-Ahmd.); Sabare Internat....
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....t of exempted goods without bond / LUT does not bar refund of input / input service tax. With these observations, this Tribunal remanded the case back to the Adjudicating Authority with the direction to verify the documents for processing refund. 4.2 I have gone through the order passed by CESTAT Ahmedabad in M/s. Kapu Gems. In the said order, it has been mentioned by this Tribunal that the appellant applied for service tax registration on 20.03.2020 for the first time, on being realized that the appellant is liable to pay service tax under Reverse Charge Mechanism on software services. On 30th August, 2013, the appellant preferred the refund application for unutilized amount of CENVAT Credit on GTA services, Banking and Financial Services and Clearing and Forwarding Services used in the export of goods during the period 2009-10 to 2011-12 up to 31st July, 2013. While filing the refund claim, the appellant claimed refund of unutilized CENVAT Credit in proportion to export turnover. The Assistant Commissioner vide order dated 27th November, 2013 rejected the refund claim of unutilized CENVAT Credit on input service. On 22nd December, 2014, the appellant again filed the refund claim....